Citation Nr: 9834118
Decision Date: 11/19/98 Archive Date: 11/24/98
DOCKET NO. 96-13 650 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for chronic pathology
of the skin.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
chronic pathology of the stomach, to include mucous colitis,
irritable bowel, and gallbladder disease.
ATTORNEY FOR THE BOARD
Christopher J. Gearin, Associate Counsel
INTRODUCTION
The veteran had active service from March 1957 to August
1957.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Cleveland,
Ohio.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to service
connection for chronic pathology of the skin because he
developed a rash during service. He asserts that he has
continued to experience skin rashes since then. The veteran
also contends essentially that he developed chronic pathology
of the stomach, to include mucous colitis, irritable bowel,
and gallbladder disease as a result of military service. He
believes that the newly submitted evidence proves his
contentions.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claim of
entitlement to service connection for chronic pathology of
the skin is well grounded. It is also the decision of the
Board that new and material evidence has not been submitted
to reopen a claim of entitlement to service connection for
chronic pathology of the stomach, to include mucous colitis,
irritable bowel, and gallbladder disease.
FINDINGS OF FACT
1. The claim of entitlement to service connection for
chronic pathology of the skin is not supported by cognizable
evidence demonstrating that the claim is plausible or capable
of substantiation.
2. Service connection for chronic pathology of the stomach,
to include mucous colitis, irritable bowel, and gallbladder
disease was denied by an unappealed final RO decision dated
in April 1959.
3. Evidence received subsequent to the April 1959 final RO
decision denying service connection for a left knee
disability is not so significant that it must be considered
in order to fairly decide the merits of the claim.
CONCLUSIONS OF LAW
1. The claim of entitlement to service connection for
chronic pathology of the skin is not well grounded.
38 U.S.C.A. § 5107 (West 1991).
2. Evidence received since the April 1959 final RO decision
is not new and material; the veteran’s claim may not be
reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R.
§§ 3.156(a) (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection
The veteran is seeking service connection for chronic
pathology of the skin. The legal question to be answered
initially is whether the veteran has presented evidence of a
well-grounded claim; that is, a claim that is plausible. If
he has not presented a well-grounded claim, his appeal must
fail with respect to this claim and there is no duty to
assist him further in the development of this claim.
38 U.S.C.A. § 5107(a). As will be explained below, the Board
finds that this claim is not well grounded.
The law provides that service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. § 1131 (West 1991);
38 C.F.R. § 3.303 (1998). However, “[a] determination of
service connection requires a finding of the existence of a
current disability and a determination of a relationship
between that disability and an injury or disease incurred in
service.” Watson v. Brown, 4 Vet. App. 309, 314 (1993).
Three discrete types of evidence must be present in order for
a veteran’s claim for benefits to be well grounded: (1)
There must be competent evidence of a current disability,
usually shown by medical diagnosis; (2) There must be
evidence of incurrence or aggravation of a disease or injury
in service. This element may be shown by lay or medical
evidence; and (3) There must be competent evidence of a nexus
between the inservice injury or disease and the current
disability. Such a nexus must be shown by medical evidence.
See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997);
Caluza v. Brown, 7 Vet. App. 498, 506 (1995).
In the alternative, the chronicity provisions of 38 C.F.R. §
3.303(b) are applicable where evidence, regardless of its
date, shows that a veteran had a chronic condition in
service, or during an applicable presumptive period, and
still has such condition. Such evidence must be medical
unless it relates to a condition as to which under case law
of the Court, lay observation is competent.
If chronicity is not applicable, a claim may still be well
grounded on the basis of 38 C.F.R. § 3.303(b) if the
condition is noted during service or during an applicable
presumptive period, and if competent evidence, either medical
or lay, depending on the circumstances, relates the present
condition to that symptomatology. Savage v. Gober, 10 Vet.
App. 488, 498 (1997).
The veteran’s service medical records show no indication of
any treatment for, or diagnosis of a chronic skin disorder
during his period of service. Physical examination at the
time of his entrance into service in March 1957 found his
skin to be normal. While he was seen during service in May
1957 on one occasion for a skin rash. The examiner
speculated that it might have been tinea versicolor. The
report of his discharge examination in July 1957 shows that
his skin was found to be normal.
VA examined the veteran in February 1959. According to the
examination report, the veteran had tinea versicolor on the
arms, abdomen, and chest.
VA outpatient treatment records from January 1995 to April
1998 showed complaints and treatment for various skin rashes,
to include tinea versicolor.
According to an August 1997 VA Medical Center (VAMC) note
indicated that the veteran repeatedly failed to appear for
his dermatology examination appointments. The veteran failed
to appear for the March 1997 dermatology examination. The RO
contacted the veteran with respect to rescheduling the
appointment. The veteran indicated that he could not make
the appointments because he had to work. Subsequently, the
RO canceled the dermatology appointment because the veteran
failed to contact the RO. The veteran has a responsibility
to report for VA examinations that have been authorized and
scheduled. Dusek v. Derwinski, 2 Vet. App. 519, 522 (1992);
Olson v. Principi, 3 Vet. App. 480 (1992); 38 C.F.R. §§
3.326, 3.655 (1997). Simply put, the duty to assist is not
always a one-way street. If a veteran wishes help, he cannot
passively wait for it in those circumstances where he may or
should have information that is essential in obtaining the
putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193
(1991).
While the post-service medical records show that the veteran
has been treated for skin rashes, he has submitted no medical
evidence to relate his current condition to his military
service. Moreover, while the service medical records show
that veteran had a skin rash on one occasion, the separation
examination report was negative for a skin disorder.
The veteran claims that he developed a skin disorder during
service, however, he has offered no competent evidence to
establish such a relationship, other than his own
unsubstantiated contentions. While the veteran is certainly
capable of providing evidence of symptomatology, “the
capability of a witness to offer such evidence is different
from the capability of a witness to offer evidence that
requires medical knowledge...” Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992). Causative factors of a disease
amount to a medical question; only a physician’s opinion
would be competent evidence. Gowen v. Derwinski, 3 Vet.
App. 286, 288 (1992).
A well-grounded claim requires more than a mere assertion;
the claimant must submit supporting evidence. Tirpak v.
Derwinski, 2 Vet. App. 609, 611 (1992). Since the appellant
has submitted no medical opinion or other competent evidence,
to support his claim that any current skin disorder is in
anyway related to his period of service, the Board finds that
he has not met the initial burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that his claim is well grounded. 38 U.S.C.A. §
5107. Hence, the benefit sought on appeal is denied.
Although the Board has disposed of the claim of entitlement
to service connection for chronic pathology of the skin on a
ground different from that of the RO, that is, whether the
veteran's claim is well grounded rather than whether he is
entitled to prevail on the merits, the veteran has not been
prejudiced by the Board's decision. In assuming that the
claim was well grounded, the RO accorded the veteran greater
consideration than his claim warranted under the
circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94
(1993).
Finally, as the foregoing explains the need for competent
evidence of a current disability which is linked by competent
evidence to service, the Board views its discussion above
sufficient to inform the veteran of the elements necessary to
complete his application for service connection for the
claimed disability. Robinette v. Brown, 8 Vet. App. 69, 79
(1995).
New and Material
In April 1959, the RO denied entitlement to service
connection for an intestinal condition, and cholelithiasis on
the basis that the evidence of record failed to show any post
service intestinal condition, other than cholelithiasis.
While cholelithiasis was diagnosed in a February 1959 VA
examination report, it was not diagnosed in service. The
veteran was notified of this decision but he did not file a
timely notice of disagreement. Hence, that decision is
final. 38 U.S.C.A. § 7105. A claim which is final may be
reopened through the submission of new and material evidence.
See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156.
New and material evidence must be presented or secured since
the time that the claim was finally disallowed on any basis.
Evans v. Brown, 9 Vet. App. 273 (1996). Evidence presented
since the last final disallowance need not be probative of
all elements required to award the claim, but need be
probative only as to each element that was a specified basis
for the last disallowance. See Glynn v. Brown, 6 Vet. App.
523, 528-29 (1994).
In March 1995, the veteran filed to reopen his claim for
service connection for a stomach disorder, to include mucous
colitis. Evidence available to the RO in April 1959 included
the veteran's service medical records; a February 1959 VA
examination report; and various statements provided by the
appellant.
Evidence received since the last final RO decision includes a
September 1995 VA Hospital Report; VA outpatient treatment
records from January 1995 to April 1998; VA examination
reports from March and April 1997; a November to December
1966 hospital summary from the Good Samaritan Hospital; and
various statements provided by the veteran.
Significantly, however, after carefully considering the
evidence submitted since the last final RO decision, in light
of evidence previously available, the Board is compelled to
find that the veteran has not submitted evidence which is new
and material.
In this regard, the Board would point out that the evidence
submitted since the last final RO decision records the
veteran’s persistent complaints of his claimed stomach
problems, and document his contention that his symptoms began
in service. The treatment reports, however, notably do not
further address the etiology of the veteran’s claimed
disability. Evidence which is simply unenhanced information
recorded by a medical examiner does not constitute competent
medical evidence sufficient to reopen a claim. LeShore v.
Brown, 8 Vet. App. 406, 409 (1995).
While the records contain new evidence concerning treatment
for the claimed disability and arguably contain new evidence
concerning the possible identification of the basis for the
veteran’s symptoms, they do not document treatment for his
symptoms until many years after service, and most notably
they do not contain an opinion addressing either the etiology
of any current disability to include whether the appellant’s
current disability is related to any disorder noted in
service. Hence, these records are not significant in the
sense set forth in 38 C.F.R. § 3.156.
The appellant has suggested that any current stomach disorder
is due to his service. In this regard, the Board would point
out that, while the statements from the veteran are new, they
are immaterial because they do not provide a competent basis
upon which to suggest that the appellant’s military service
caused or aggravated his claimed stomach disorder. Lay
assertions of medical causation, or in this case, of
aggravation of a preexisting disorder, cannot suffice to
reopen a claim under 38 U.S.C.A. § 5108. While the veteran
is certainly capable of providing evidence of symptomatology,
a layperson is generally not capable of opining on matters
requiring medical knowledge, such as the condition causing or
aggravating the symptoms. Routen v. Brown, 10 Vet. App. 183
(1997). Thus, he cannot provide the required medical nexus
between any current stomach disorder and service. Lee v.
Brown, 10 Vet.App. 336, 339 (1997). Hence, his opinion is
insufficient to reopen this claim.
Therefore, the Board must conclude that as was the situation
in the last final RO decision, the necessary competent
evidence of a nexus between any currently diagnosed stomach
condition and the veteran’s period of military service still
has not been provided. Hence, the evidence submitted since
the last final RO decision is not new and material. See
Hodge v. West, No. 98-7017 (Fed. Cir. Sept. 16, 1998). As
such, the benefit sought on appeal must be denied.
The Board views its discussion as sufficient to inform the
appellant of the elements necessary to reopen his claim. See
Graves v. Brown, 9 Vet. App. 172, 173 (1996). In this
regard, the above discussion informs the appellant of the
steps he needs to fulfill in order to reopen his claim, and
an explanation why his current attempt to reopen the claim
must fail.
In denying the claim to reopen the Board notes that the July
1995 RO decision considered the issue de novo. The Board,
however, must itself make a de novo review of the record to
determine whether the appellant’s claim has, in fact, been
properly reopened. VAOPGCPREC 5-92 (O.G.C. Prec. 5-92); 57
Fed.Reg. 49744 (1992). If it is found that the claim was
improperly reopened, the reopening will be vacated and the
previous denial will stand. Fulker v. Brown, 5 Vet. App. 296
(1993). This is required because, once a decision becomes
final under 38 U.S.C.A. § 7105(c), “the Board does not have
jurisdiction to consider [the previously adjudicated claim]
unless new and material evidence is presented, and before the
Board may reopen such a claim, it must so find.” Barnett v.
Brown, 83 F.3d 1380, 1383 (Fed.Cir. 1996); see also Butler v.
Brown, 9 Vet. App. 167, 171 (1996) (When new and material
evidence has not been submitted with regard to a previously
disallowed claim “[f]urther analysis ... is neither
required, nor permitted.”)
In this case, the Board finds that the RO, in the July 1995
decision, improperly reopened the April 1959 decision, which
denied service connection for an intestinal condition, and
cholelithiasis. The record shows that the RO’s reasons and
bases in the April 1959 decision encompassed any alleged
chronic pathology of the gastrointestinal tract, to include
the stomach. The evidence at the time, specifically to
include the February 1959 VA examination report, was negative
for intestinal disability, except for cholelithiasis. Hence,
without new and material evidence the Board cannot consider
the issue entitlement to service connection for pathology of
the gastrointestinal system to include mucous colitis,
irritable bowel syndrome, and gallbladder disease, on the
merits.
Although the Board has disposed of this claim of entitlement
to service connection on a ground different from that of the
RO, that is, whether the appellant had submitted new and
material evidence sufficient to reopen the previously denied
claim rather than whether he is entitled to prevail on the
merits, the appellant has not been prejudiced by the Board’s
decision. In assuming that the appellant’s claim was
reopened, the RO accorded the appellant even greater
consideration than his claim warranted under the
circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94
(1993).
The benefit of the doubt doctrine does not need to be applied
in this case because the appellant has not fulfilled his
threshold burden of submitting new and material evidence to
reopen her finally disallowed claim. Annoni v. Brown, 5 Vet.
App. 463, 467 (1993).
Finally, with respect to the issues on appeal, the Board
notes that the veteran confirmed in a March 1998 statement
that he was unable to obtain his private medical records. He
indicated that one private doctor had died, and the other was
retired. Under these circumstances, where the veteran
acknowledges the unavailability of private medical records,
the Board is not obligated under the duty to assist to seek
them out. See Counts v. Brown, 6 Vet. App. 473, 477 (1994).
Cf. Porter v. Brown, 5 Vet. App. 233, 237 (1993) ("VA had no
duty to seek to obtain that which did not exist").
ORDER
Service connection for chronic pathology of the skin is
denied.
New and material evidence not having been submitted, the
application to reopen a claim of entitlement to service
connection for chronic pathology of the stomach, to include
mucous colitis, irritable bowel, and gallbladder disease, is
denied.
DEREK R. BROWN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Appeals for Veterans Claims within 120 days from the date of
mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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